The dismissal of both charges at the request of the appellant followed the execution by the respondent of a deed on that day. The deed recites that Carter, the respondent, was charged by Bell, the appellant, with each of the above charges, that Carter was remanded from time to time on those charges and that the Crown in right of the State of Queensland by its servant and agents agreed not to proceed further with the charges. It then provides:

"NOW I the said DAVID ROBERT CARTER do hereby release and forever discharge the Crown in the right of the State of Queensland its servants and agents The Honourable the Minister for Police of the said State, the Commissioner of Police and each and every member of the Police Force of the said State (including but without limiting the generality of the foregoing) the said COLIN WAYNE BELL from and against all actions suits claims damages costs expenses and demands howsoever arising for or in respect of or in any manner connected with such events or happenings as hereinbefore referred to or any of them or such arrest as hereinbefore referred to."

The deed then provides that the release and discharge may be pleaded in bar to any action or other proceedings by Carter against any of the persons referred to and goes on to provide:

"I the said DAVID ROBERT CARTER hereby indemnify and agree to hold harmless the Crown in the right of the State of Queensland its servants and agents The Honourable the Minister for Police of the State of Queensland, the Commissioner of Police and each and every member of the Police Force of the State of Queensland (including but without limiting the generality of the foregoing) the said COLIN WAYNE BELL their servants and/or agents against all manner of actions suits claims damages costs expenses and demands howsoever arising for or in respect of or in any manner connected with such events or happenings as hereinafter referred to or any of them or such arrest as hereinbefore referred to."

The phrase "arising for" in each of the quoted clauses appears to have been intended to read "arising from"; and in the phrase "such events or happenings as hereinafter referred to" in the second of those clauses the word "hereinafter" seems plainly to have been intended, as in the earlier quoted paragraph, to refer to events or happenings "hereinbefore referred to", there being no events or happenings referred to thereafter. The "events or happenings" referred to in each of the quoted clauses therefore include charging the respondent with the two offences. The proceedings dismissed arose from those charges.

The deed therefore plainly precluded the respondent from seeking costs upon the dismissal of those charges. Nevertheless his counsel sought such costs and persisted with an argument before us that the deed did not disentitle him from recovering such costs; the argument being that the costs referred to in each of the quoted clauses were and were only costs in respect of actions or suits other than the proceedings on the charges. Such an argument is untenable.

Before the respondent's counsel applied for costs, the respondent's solicitor had a conversation with the police prosecutor as to whether the terms of the deed precluded such application. The police prosecutor simply replied that she had instructions to withdraw the charges if the appellant signed the deed. Though she was apparently of the opinion that the deed did preclude such an application, she did not object to it or argue against it (except to say that she had a standing instruction to oppose costs) or refer the magistrate to the terms of the deed.

In the course of his application for costs counsel for the respondent submitted that the magistrate, having exercised his discretion to grant costs, should adjourn the determination of the quantum thereof to enable material on that question to be placed before him. He told the magistrate that that was the practice in Brisbane. According to the transcript of the recorded hearing the magistrate then adjourned the question of costs to a date to be fixed to enable the solicitors for the respondent to put material with respect to the quantum of those costs before him. However, his endorsement on the bench charge sheet indicates that on that day he dismissed the charge, ordered that the appellant pay the respondent's costs, and adjourned the quantum of those costs to a date to be fixed.

Each of these orders is contrary to s. 159 of The Justices Act of 1886 which provides:

"The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of prosecution."

There can be no doubt that on 1 July 1991 the magistrate dismissed the charges. The only question in doubt is whether he made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all on that date notwithstanding an intimation of his intention to do so. It is not necessary to decide which of these courses he took. Both were beyond power. If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the question of costs.

The appellant, having succeeded on the appeal, asks for costs. It may be added on his behalf that the respondent led the magistrate into error in two respects; first in considering an application for costs when the deed plainly precluded such an application, and secondly in adjourning the question of costs or the fixing of the amount thereof after dismissal of the complaint when either course was beyond power. On the other hand, the respondent points to the fact that the appellant failed to argue against costs on any relevant basis. However, that failure is, in our view, outweighed by the appellant's success on this appeal and the respondent's misleading of the magistrate. The respondent should pay the appellant's costs.

The rule nisi is therefore made absolute with costs.

MINUTES OF ORDER: Rule nisi is made absolute with costs.

CATCHWORDS: COSTS - COMPROMISE AGREEMENT - respondent applied for costs below despite signing deed precluding application - charges against respondent dismissed pursuant to deed - whether adjournment of question of costs or amount thereof beyond power - whether respondent misled magistrate into so ordering

Counsel: K. Fleming Q.C. with him J. Aberdeen for the Appellant

____________________________________________________

____________________________________________________

Reasons for Judgment of the Court delivered the 11th day of August 1992

____________________________________________________